## Facts

- Sub-Zero Freezer Company (Sub-Zero), a Wisconsin corporation, contracted with Cunard Line Limited (Cunard), a Bahamian corporation with its principal place of business in Miami, Florida, to rent Cunard’s 208-passenger ship, the *Seabourn Spirit*.
- The agreement covered a seven-night cruise in the Eastern Mediterranean Sea.
- The contract required Sub-Zero to prepay the entire price of $892,000 and provided that the payment would be nonrefundable if Sub-Zero decided to cancel.
- The contract also included a provision relieving Cunard of liability for failure to perform even in the event of war or a terrorist attack, unless the United States government officially directed Cunard not to sail.
- Before the scheduled departure, the September 11, 2001 terrorist attacks occurred in the United States.
- The U.S. Department of State issued warnings discouraging Americans from traveling abroad, but the U.S. government did not order Cunard to cancel the cruise.
- Sub-Zero asked Cunard to reschedule the trip or refund the prepaid amount; Cunard refused.
- Sub-Zero canceled and filed suit in federal district court seeking to recover the $892,000 payment.
- Cunard moved to dismiss the complaint.

## Issues

1. Whether Sub-Zero stated a claim for return of its nonrefundable prepayment based on impossibility of performance (and related doctrines) under Florida law where the contract expressly addressed terrorism/war risk and Cunard was not ordered by the U.S. government not to sail.

## Decision

- The court granted Cunard’s motion to dismiss.
- The court enforced the contract’s nonrefundability and risk-allocation terms and rejected Sub-Zero’s reliance on impossibility (and related) theories to obtain a refund.

## Legal Principles

- On a motion to dismiss, the court assesses whether the complaint plausibly alleges a legally valid claim, assuming well-pleaded factual allegations are true.
- Under Florida contract law, impossibility and related excuse doctrines generally require an event that makes performance objectively impossible (or defeats the contract’s basic purpose) and that was not allocated by contract to the party seeking relief.
- Where the parties have expressly addressed a contingency in their agreement—such as war or terrorism—and have set conditions for when performance obligations or remedies change, courts typically enforce that allocation rather than use excuse doctrines to rewrite the bargain.
- Government warnings that discourage travel, without an order prohibiting performance, do not by themselves make performance legally impossible when the other contracting party remains able and willing to perform.

## Conclusion

In *Sub-Zero Freezer Co. v. Cunard Line Ltd.*, Sub-Zero sought to recover a $892,000 prepayment for a Mediterranean incentive trip it canceled after the September 11 attacks and ensuing State Department travel warnings. Because the contract made the payment nonrefundable upon Sub-Zero’s cancellation and specifically allocated terrorism/war risk—triggering relief only if the U.S. government officially directed Cunard not to sail—the court dismissed the complaint and held Sub-Zero could not use Florida’s impossibility (or similar) doctrines to obtain a refund when Cunard remained able to perform and no government order prevented the trip.


Sub-Zero Freezer Co. v. Cunard Line Ltd., 2002 WL 32357103 (2002)